Evidence Flashcards
When can a witness may be asked about specific instances of conduct?
Only in character for truthfulness testimonials.
Only in cross-examination if it is probative of the:
i) truthfulness or untruthfulness of
(ii) the witness or
(iii) another witness about whose character the witness being cross-examined has testified.
When can evidence of a witness’ juvenile adjudication be introduced?
A criminal defendant may impeach a witness by:
1) introducing evidence of a witness’s juvenile adjudication to show motive to lie or bias, or
2) impeach a witness’s character for truthfulness with the witness’s juvenile adjudication when an adult’s conviction for the offense would be admissible to attack the adult’s credibility, and
* admitting the evidence is necessary to fairly determine guilt or innocence.
Can I present evidence that contradicts a fully integrated contract, if this evidence refers to a conduct subsequent to the execution of the contract?
<p>Yes. The parol evidence rule operates to exclude evidence that, if introduced, would change the terms of a written agreement. However, only evidence of prior or contemporaneous negotiations is subject to the parol evidence rule; evidence of negotiations conducted after the execution of the written contract is not prohibited by the parol evidence rule and may be offered to prove subsequent modifications. Because the buyer sent the email after the contract was executed, it would not be prohibited by the parol evidence rule.</p>
Is an out-of-court prior identification statement admissible if the witness is now unavailable?
<p>No.Under Rule 801(d)(1)(C), a previous out-of-court identification of a person after perceiving that person is admissible as substantive evidence, but only if the witness testifies at the present trial or hearing and is subject to cross-examination concerning the identification. Here, since the witness died before the trial, her previous out-of-court identification of the defendant is inadmissible.</p>
How does a judge decide preliminary questions regarding the competence of evidence?
Trial judge generally decides preliminary questions regarding the competency of evidence, including the admissibility of evidence, whether privilege exists, and whether a person is qualified to be a witness.
Hearings on preliminary matters must be conducted outside the presence of the jury when the hearing involves the admissibility of confessions, when a defendant in a criminal case is a witness and so requests, or when justice requires it.
(Standard of review: abuse of discretion)
When deciding preliminary questions regarding the competence of evidence should a judge consider privileged evidence (use it to assess the evidence)?
<p>No, a judge is bound by the Federal Rules in deciding these questions, except with respect to privileges. This means privileged evidence must not be factored in when assessing the evidence competence.</p>
Can the Court (judge) consider otherwise inadmissible evidence when deciding on the competency of evidence?
<p>Yes, a judge may consider everything (e.g.: hearsay or affidavits) except privileged evidence.</p>
Does a judge must to give a party an opportunity to be heard before taking judicial notice?
<p>No, when a party makes a timely request, a judge must give the party an opportunity to be heard on the propriety of taking judicial notice and the nature of the fact to be noticed. However, a judge is not required to provide this opportunity before taking judicial notice of an adjudicative fact.</p>
Does a rebuttable presumption shift the burden of production or persuasion?
<p>A rebuttable presumption shifts the burden of production, but not the burden of persuasion, to the opposing party. A rebuttable presumption may be overcome by evidence to the contrary. If no contrary evidence is introduced, the judge must instruct the jury to accept the presumption. If contrary evidence is introduced, as is the case here, then the presumption no longer has a preclusive effect.</p>
What does mean “the truth of the matter asserted”?
It means the truth of the content of the information provided.
Not necessarily the claim being disputed at court.
E.g.: “woman doesn’t belong in the field” does not prove that “coach acted in a discriminatory way”, and therefore is not hearsay.
Will verbal acts or conducts, or legally operative facts be considered hearsay?
They will usually not, except if used for the truth of the matter asserted. Examples: someone mentions that a contract was made, or that someone said that showing a conduct “I am really strong”. These will be operative facts and thus not hearsay.
How would personal knowledge trumps the best evidence rule?
<p>A witness with personal knowledge does not need to produce a document if she knows the same information from personal knowledge.</p>
Who has the burden of proof regarding the admissibility of a conviction that is less than 10 years old for a felony crime not involving fraud or dishonesty?
The defendant has the burden of proof.
For a witness other than a criminal defendant, the court may exclude such evidence when the party objecting to the impeachment shows that the probative value is substantially outweighed by the prejudicial effect (i.e., the Rule 403 standard).
Can a memory refresher item ever be introduced into evidence?
<p>Yes, when the item used to refresh a witness’s recollection is a writing, the adverse party is entitled to have the document produced, to inspect the document, to cross-examine the witness about it, and to introduce any relevant portion into evidence.</p>
What is the minimum required for the authentication of a photograph or a recording?
<p>"testimony of a witness with personal knowledge that the object accurately depicts what its proponent claims it does". Sufficient evidence to support a finding that the thing is what its proponent claims it is (photographs, diagrams, maps, movies).</p>
Why do x-ray, EEGs, and other technical items require an increased level of authentication?
Because X-ray images, electrocardiograms, and similar items are physical representations of things that cannot otherwise be seen (i.e., the inner workings and functionality of a human body).
As such, unlike other reproductions, they cannot simply be authenticated by the testimony of a witness claiming that they are accurate reproductions of the facts.
How can a lay witness testify as to whether a document is in a person’s handwriting?
<p>A lay witness with personal knowledge of the claimed author’s handwriting may testify as to whether the document is in that person’s handwriting. However, the lay witness must not have become familiar with the handwriting for the purposes of the current litigation.</p>
Is real physical evidence subject to the best evidence rule?
No.
Can a defendant waive his rights to the plea negotiation exclusion rule?
<p>Yes,although statements made by a defendant during plea negotiations are generally inadmissible pursuant to Federal Rule 410, the protection afforded by this rule may be waived by the defendant if the defendant knowingly and voluntarily, and in the presence of counsel, waives this exclusion.</p>
Can a settlement agreement be introduced with the purpose of establishing the validity of a claim or the amount of damages?
<p>No,evidence of a settlement offer, including evidence of the acceptance of such an offer, is not admissible for the purpose of establishing the validity of a claim or the amount of damages.</p>
<p>When there are more than two parties, a settlement agreement entered into by a party with an adverse party cannot be used by a remaining adverse party to prove or disprove the amount of an unsettled claim.</p>
Would a D’s statement not to worry since he has insurance be admissible?
No, evidence that a person was or was not insured against liability is not admissible to prove whether the person acted negligently or otherwise wrongfully. Here, the defendant told the plaintiff not to worry because he had car insurance. Accordingly, the plaintiff is not permitted to admit this statement to prove that the defendant acted negligently. Because there is no other reason for admitting this statement, it is inadmissible under a public policy exclusion.
Can sexual past misconduct character evidence be admissible despite not related to the specific case in a civil lawsuit?
Yes, evidence concerning past sexual assault or child molestation by a defendant in a case in which the claim for relief is based on the defendant’s sexual misconduct is admissible.
Any evidence of past sexual assault or child molestation by a defendant may be admitted, regardless of whether the specific circumstances of the sexual assault or molestation are similar or entirely different.
